State v. Ponds, 47856

• Decision Date: 13 December 1975
• Docket Number: No. 47856,47856
• Parties: STATE of Kansas, Appellee, v. Donald G. PONDS and Anthony R. Garrett, Appellants.
• Court: Kansas Supreme Court

Page 967

543 P.2d 967

218 Kan. 416

STATE of Kansas, Appellee, v. Donald G. PONDS and Anthony R. Garrett, Appellants.

No. 47856.

Supreme Court of Kansas.

Dec. 13, 1975.

Syllabus by the Court

1. Whether or not the endorsement of an additional witness will be allowed during the course of a trial is within the sound discretion of the trial court. The test for abuse of that discretion is whether or not the rights of the defendant were prejudiced by the endorsement.

2. Failure to object to an instruction as required by K.S.A. 22-3414(3) precludes a defendant from assigning it as error an appeal.

3. Error cannot be predicated on the refusal to give specific requested instructions where those which were given cover and include the substance of those refused.

4. The admissibility of physical evidence is to be determined by the trial judge, who must be satisfied as to its relevance and its connection with both the accused and the alleged crime.

5. When a physical object is offered in evidence and a question of fact arises as to its connection with either the defendant or the crime, unless it is clearly irrelevant the object should be admitted for such weight and effect as the jury sees fit to give it.

6. Where a weapon found in the possession of a defendant is identified as being similar to one used in the crime, the lack of positive identification goes to its weight as evidence and not to its admissibility.

7. The duty to instruct on lesser included offenses arises only where there is at least some evidence on which the jury might reasonably convict of a lesser offense.

8. Rape supplies the element of bodily harm necessary to make a kidnapping aggravated kidnapping.

9. Where the testimony of a kidnap victim that she was raped is unchallenged and uncontroverted, the defendant is either guilty of aggravated kidnapping or not guilty. Under these circumstances an instruction on the lesser included offenses of simple kidnapping or unlawful restraint is not required.

10. A definition of reasonable doubt in the instructions is unnecessary but is not prejudicial error where it is not an erroneous statement of the law and does not tend to mislead the jury.

Gary D. Hanna, of Brown & Hanna, Wichita, argued the cause and was on the brief for appellant Ponds.

Ronald D. Heck, of McDonald, Tinker, Skaer, Quinn & Herrington, Wichita, argued the cause and was on the brief for appellant Garrett.

Stephen E. Robinson, Asst. Dist. Atty. argued the cause, and Curt T. Schneider, Atty. Gen., and Keith Sanborn, Dist. Atty., were with him on the brief for the appellee.

FOTH, Commissioner:

In a joint trial by a jury Donald G. Ponds and Anthony R. Garrett were each convicted of two counts of aggravated kidnapping and two counts of rape. Ponds was also convicted of one count of aggravated sodomy. The jury was unable to agree on an additional two counts charging robbery; these counts were later dismissed by the state and no longer concern us. The jury also disagreed as to a third defendant, Elton D. Donahue, whose conviction in a later trial is this day affirmed in State v. Donahue, 218 Kan. 351, 543 P.2d 962 (1975). New trial was denied, both defendants were sentenced to concurrent terms on all counts, and this appeal ensued.

On the evening of July 10, 1973, Ponds, Garrett and Donohue accosted two young co-eds in the parking lot of the Flicker Lounge, a college-age night spot near Wichita State University. Garrett brandished a pistol, thereby providing the men entry into the car. The women were driven to a deserted area where they were sexually assaulted by the trio, and were later driven back toward the university and left in the car. Other facts will be related in discussing the six claims of error.

I. Appellants allege error in allowing the state to endorse certain additional witnesses at and after the start of the trial. Their complaint centers on officer John H. Davis, a WSU security officer, who was endorsed on the first day of trial. He testified that on the evening in question, while driving on 17th Street, he had seen the car containing the three men and two women, he had observed the profile of one of the men while following the car for about five blocks, and was able to identify Ponds as that man.

Appellants emphasize that the state had known for three months that the car had been seen by a WSU officer (the victims had so testified at the preliminary hearing) and that with due diligence could have discovered his name prior to filing the information. The prosecutor stated he just learned the officer's name on the Friday before the Monday trial date. Due diligence is not the test, however. Instead it is incumbent on a defendant to show that his rights were prejudiced by the late endorsement. Whether to allow endorsement rests in the sound discretion of the trial court, and absent abuse will not be disturbed. State v. Williams & Reynolds, 217 Kan. 400, 536 P.2d 1395, Syl. 1; State v. Collins, 217 Kan. 418, 536 P.2d 1382; State v. Blocker, 211 Kan. 185, 505 P.2d 1099. Appellants were unable to show surprise because, as the trial court pointed out, they also had known since the preliminary hearing that a WSU officer had seen the car, and could have discovered his name themselves. Compare State v. Robertson, 203 Kan. 647, 455 P.2d 570, where a late endorsement of the defendants' accomplices was not prejudicial since the defendant obviously knew of their familiarity with the crime. The defense here was not required to change its trial strategy, nor do the defendants claim that there was evidence that could have met the testimony of officer Davis had they anticipated it. Compare State v. Eidson, 143 Kan. 300, 54 P.2d 977, 55 P.2d 1050. The officer's testimony 'did not change the theory of the prosecution. It merely bolstered the case of the prosecution.' (State v. Robertson, supra, 203 Kan. at 649, 455 P.2d at 572.) We find no prejudicial error in permitting the late endorsement of officer Davis.

As to the other witnesses endorsed late, appellants do not include there testimony in the record and we are therefore unable to determine if prejudice exists. See State v. Myers, 215 Kan. 600, 527 P.2d 1053.

II. Appellant Ponds complains because no instruction was given specifically detailing which evidence that had been admitted was not to be considered as applicable to him. Counsel requested such an instruction during the course of the trial, and the court indicated one would be given at the close of the case. The result was instruction No. 7:

'Three persons are being tried at the same time for the convenience of the Court, and in this connection evidence has been permitted during this trial which applies to one defendant and obviously does not apply to the others. You are instructed that you must not consider the fact that three persons are being tried together as any evidence whatsoever of the guilt of any of them.

'You should further disregard the evidence which applies solely to one defendant when considering the question of the guilt or innocence of the others.

'In the event that you find any defendant guilty under these instructions, you must not consider that fact in your deliberations with respect to the guilt or innocence of the remaining defendants.'

Ponds alleges that the instruction is so general in nature that it denied him the right to have the jury consider only the evidence applicable to him. The short answer is that no objection was made to the instruction, as required by K.S.A. 22-3414(3), nor was any alternative instruction requested. In addition, the one given was adequate to advise the jurors as to their responsibility to consider each defendant separately, and the result indicates they did so.

III. Ponds next complains of the failure to give his requested instruction No. 12:

'The identification of the defendant Donald G. Ponds has been challenged. Your are therefore required to find beyond a reasonable doubt that it was the defendant, Donald G. Ponds, who committed the acts alleged.'

The argument is that because the identification of Ponds was challenged on cross-examination of the state's witnesses, such a challenge is somehow so unique as to require a separate instruction. We cannot agree. The identification of the defendant as the one who committed the crime is a primary issue in nearly every criminal case. The jury was informed that each and every element of the crime had to be established beyond a reasonable doubt, and identity is one of those elements. '(E)rror cannot be predicated on the refusal to give specific instructions where those which were given cover and include the substance of those refused.' (State v. Skinner, 210 Kan. 354, 361, 503 P.2d 168, 174.) See cases collected in 2 Hatcher's Kansas Digest, rev.ed., Criminal Law, § 306; 4 West's Kansas Digest, Criminal Law, § 829.

The District of Columbia cases cited by Ponds stand for the proposition that a defendant is entitled to an instruction on his theory of the case, e. g., insanity in Tatum v. United States, 88 U.S.App.D.C. 386, 190 F.2d 612 (1951). We have no quarrel with this proposition, but find it inapplicable here. No special instruction on identity was required.

IV. Ponds next complains of the admission of a .22 caliber pistol against him. The gun was taken from defendant Garrett, who was arrested the day after the incident at a time and place different from that of Ponds' arrest. One of the victims testified that the weapon was about the same size and general appearance as the one used in the crime, but was unable to identify it with certainty.

This court has consistently held that '(p)hysical objects connected with a proscribed criminal act, or which serve to unfold or explain it, may be exhibited in evidence whenever the criminal act is under judicial investigation.' (State v. Little, 201 Kan. 101...